FEATURE ARTICLE

June 2007

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The Endangered Species Act and Agency ‘Discretion’: The Courts and Agencies Take Different Directions

The Endangered Species Act (ESA), 16 U.S.C. § 1531 et seq., enacted in 1973, is “the most comprehensive legislation for the preservation of endangered species ever enacted by any nation.” Tennessee Valley Authority v. Hill, 437 U.S. 153, 180 (1978). The statute, among other things, prohibits federal agencies from taking actions that may jeopardize an endangered species. The Secretaries of Interior and Commerce, who administer the ESA, have adopted regulations defining the responsibilities of federal agencies under the ESA. Although the Supreme Court has held under the “Chevron doctrine” that the courts generally should defer to federal agency regulations interpreting ambiguous federal statutes, Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984), the Ninth and Tenth Circuit Courts of Appeals have recently declined to defer to the Secretaries’ regulations defining federal agency responsibilities under the ESA, or at least have interpreted the regulations narrowly. This article will describe how these courts have failed to defer to the Secretary’s regulations, contrary to the tenets of the Chevron doctrine.